Nino v. Galaza, No. 98-55563

• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)
• Writing for the Court: THOMAS
• Citation: 183 F.3d 1003
• Parties: (9th Cir. 1999) JESUS NINO, Petitioner-Appellant, v. GEORGE GALAZA, Warden; ATTORNEY GENERAL OF THE STATE OF CALIFORNIA, Respondents-Appellees
• Docket Number: No. 98-55563
• Decision Date: 07 June 1999

Page 1003

183 F.3d 1003 (9th Cir. 1999) JESUS NINO, Petitioner-Appellant,
v.
GEORGE GALAZA, Warden; ATTORNEY GENERAL OF THE STATE OF CALIFORNIA, Respondents-Appellees. No. 98-55563 UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT Submitted June 7, 1999¹
Decided July 6, 1999

Page 1004

Jesus Nino, Corcoran, California, pro se, for the petitioner- appellant.

David Andrew Eldridge, Deputy Attorney General, Los Angeles, California, for the respondents-appellees.

Appeal from the United States District Court for the Central District of California William D. Keller, District Judge, Presiding. D.C. No. CV-97-06831-WDK.

Before: James R. Browning, Sidney R. Thomas, and Kim McLane Wardlaw, Circuit Judges.

THOMAS, Circuit Judge:

In this appeal, we are asked to decide whether the time tolled for exhaustion of state remedies pursuant to 28 U.S.C. S 2244(d) includes the interval between the disposition of an appeal or post-conviction petition and the filing of an appeal or successive petition at the next state appellate level. We conclude that, for purposes of S 2244(d), the time must be tolled for the entire period in which a petitioner is appropriately pursuing and exhausting his state remedies. Accordingly, we reverse the district court's dismissal of petitioner's habeas corpus petition as untimely.

I

One of the most venerable doctrines in federal habeas corpus jurisprudence is that a state prisoner must fully and fairly present his or her claims to state courts before seeking federal habeas relief. See Ex parte Hawk, 321 U.S. 114, 116- 17 (1944); Ex parte Royall, 117 U.S. 241, 252-53 (1886). The rule was first codified in 1948, see Felker v. Turpin, 518 U.S. 651, 662 n.4 (1996), and adopted in its present form by Con- gress in the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), see 28 U.S.C.A. S 2254(b)(1) (West Supp. 1999).

The exhaustion requirement is "grounded in principles of comity." Coleman v. Thompson, 501 U.S. 722, 731 (1991). It is "principally designed to protect the state courts' role in the enforcement of federal law and prevent disruption of state judicial proceedings." Rose v. Lundy, 455 U.S. 509, 518 (1982). The Supreme Court has assiduously applied and expanded the exhaustion principle. See, e.g., O'Sullivan v. Boerckel, 119 S. Ct. 1728, 1729-30 (1999) (holding that a state prisoner must exhaust discretionary state post-conviction remedies before seeking federal habeas relief); Rose, 455 U.S. at 522 (holding that federal courts must generally dismiss petitions containing both exhausted and unexhausted claims).

In addition to supplanting prior statutory exhaustion requirements, AEDPA imposed limits on the time in which a state prisoner could file a federal habeas petition. Previously, aside from certain prudential considerations, a petitioner had "almost unfettered discretion" in deciding when to file his federal petition. Calderon v. United States Dist. Ct. (Beeler), 128 F.3d 1283, 1286 (9th Cir. 1997), overruled on other grounds by Calderon v. United States Dist. Ct. (Kelly), 163 F.3d 530 (9th Cir. 1998), cert. denied, 119 S. Ct. 1377 (1999). In furtherance of "Congress's desire to accelerate

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the federal habeas process," Beeler, 128 F.3d at 1289, AEDPA imposed a one-year statute of limitations on the filing of a federal habeas corpus petition by a state prisoner, see 28 U.S.C.A. S 2244(d)(1) (West Supp. 1999). The one-year limitations period begins to run from the latest of:

(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review;

(B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action;

(C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or

(D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.

S 2244(d)(1)(A-D).

Further, AEDPA provides that the statute of limitations is tolled during the time that a state prisoner is attempting to exhaust his claims in state court. Section 2244(d)(2) states that "[t]he time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation under this subsection."

The decisive factor in this case in determining whether Nino's federal petition was timely filed is whether AEDPA's statute of limitations remains tolled during the intervals between the state court's disposition of a state habeas petition and the filing of a petition at the next state appellate level. Deciding that question requires construction of when an application for state post-conviction or collateral review is "pending."

To date, only one other circuit court has squarely faced the issue. In concluding that applying tolling during these periods was consistent with the principle of total exhaustion, the Tenth...